“The judge told me this notion of independence I had mentioned was ‘very interesting’. However, he ought to clarify one thing. Did he understand it correctly that it involved that one does not consult with the party bureau first, before ruling a case? Quickly, I learned that as an expert, never assume your approach with regard to some basic concepts is identical to that of your project counterpart. This doesn’t necessarily have much to do with the legal culture in a given country or perhaps a different stage in fighting corruption, or whatever. The entire society may be originating from another point of view.” Human rights lawyer Martin Kuijer will be the second among legal capacity building experts working in CILC projects to be featured in a series of articles about the organisation. He will share his stories and insights about legal capacity building ‘in the field’, the result of his long-term experience as human rights lawyer in various positions and contexts – both abroad and at home in the Netherlands.
Interview by Marjolein C. Groot, 23 July 2015
Albania: An introduction to the ‘profession’ of legal capacity building expert
Martin Kuijer had his first stint as a human rights expert in legal capacity building in the late 1990s. Freshly returned from two years of studies in Oxford, and working on his doctoral dissertation at the University of Leiden where he was also teaching law, in 1999 Kuijer was invited by the Council of Europe to participate in a project in Albania. He was pleasantly surprised and somewhat flattered that the Council took him into consideration for the assignment. “I did not give much thought as to why they contacted me at such a short notice”. The project would take place within three weeks.
Kuijer did not do much research into the Albanian context in advance either – it was still a very closed country at the time. There was an ongoing civil war in different parts of the country and, after Italy had intensified the persecution of the mafia, many of its members had sought refuge in Albania. In the capital, Tirana, the two main political parties were literally fighting each other and soldiers had not been paid for at least one year. Numerous international organisations were present in the country, including the Western European Union (WEU), with their ‘MAPE’ (Multinational Advisory Police Element) mission. This international mission aimed to advise the Albanian authorities about issues such as public order, border control, logistics and communication and, later on, was also educating, training and equipping the Albanian police officers, as well as supervising the police apparatus. All of them had a strong visibility in the country as their envoys were driven around in easily identifiable SUVs which were not common on Albanian roads before. Albanian soldiers were resorting to abducting the international workers and using the ransom money to fund their unpaid salaries. Kuijer: “I was not aware of any of this before agreeing to the Council of Europe’s assignment proposal”.
Only on the plane on his way to Albania, Kuijer, when going through the information package the Council had provided him with, realised the severity of the situation in the country. Jokingly: “On top of the papers I noticed an additional life insurance the Council had arranged for me”. Before travelling, Kuijer had tried to find some more information about Albania through a specialised local travel bookshop in Leiden. “The shop owner looked at me pityingly and told me: ‘Well, Albania… nobody is going there so there are no books about the place.’” Searching the internet didn’t provide much information either. On the other hand, the latest Council of Europe report about Albania Kuijer had requested – which was also included in the information package – proved very informative. Kuijer read that for a population of three million Albanians, there were one million illegal Kalashnikovs. “It was just after the collapse of the pyramid schemes in which the population had invested its last savings. There was a situation of absolute poverty in Albania”. When the communist regime in Albania ended in 1991, many Albanians were lured by the ‘get-rich-quick’ schemes of shrewd businessmen. Almost half of all Albanian families became victims of the so-called pyramid schemes that promised gullible savers monthly interest rates of 50 percent. They blamed their misfortune on the Albanian government, which resulted in riots and in the fall of the government on March 1st 1997. At the time of Kuijer’s visit, chaos and lawlessness were rife in Albanian society.
Kuijer quickly realised his first endeavour as legal capacity building expert would be quite a special one.
A local driver from the Council of Europe picked him up at the airport. “He fully resembled Neo from the movie The Matrix.” Black leather jacket, crew cut hair, dark sunglasses. Kuijer followed the driver to one of those SUVs international organisations were using in the country. “You could learn a lot from looking at the road traffic: all international organisations and diplomats were using SUVs. Then there were a lot of Mercedes cars, some of which with their original German number plates still on, driven at the time by persons who could obviously afford to drive such a car. Finally, there were horse carts or perhaps one of those very old Wartburgs – the Eastern European car, used by the majority of the local population.” Despite driving on a dirt road full of deep potholes, Kuijer’s driver sped up to 100 km/h on whichever side of the road had smaller holes: “And that’s quite fast on a dirt road. Whenever a slower Wartburger was in our way, it was simply forced off-road.” When Kuijer inquired whether they were in a hurry perhaps, the driver replied that there were security risks on the road such as the possibility of being abducted and by speeding these risks would be limited as much as possible.
Kuijer remembers that entering the valley in which Albania’s capital Tirana is located provided him with quite a shocking picture. “This type of blatant poverty in Europe was unknown to me. Pretty unbelievable. For instance, there was an open air sewage system in which very young children were playing.” His driver took him on one of the mountainous roads controlled by the international peace keepers, at the end of which there was an hotel, protected by a high wall and guard dogs. It had its own energy generator and water tanks. “I didn’t leave the hotel until I was taken back to the airport a week later.” The local judges participating in the course Kuijer was conducting were picked up each morning by a minivan from the central city square and driven up the hill to the hotel.
This was how Kuijer first entered the ‘profession’ of legal capacity building experts.
These days, Kuijer is the senior legal advisor on human rights law at the Netherlands Ministry of Security and Justice, where he is inter alia responsible for the contribution of the Ministry in cases against the Netherlands before the European Court of Human Rights and relevant United Nations treaty bodies. Currently, he is the Chair of the Council of Europe working group on the longer term future of the European Court of Human Rights and the liaison officer on behalf of the Netherlands government for the European Committee for the Prevention of Torture (CPT). In addition, Kuijer is Professor in human rights law at the VU University of Amsterdam and a substitute judge at the Court of Appeal in Arnhem.
Making sure you understand your target audience
Kuijer underlines the need to study the target group of each course, their background, the culture of their justice system and, of course, the culture of the country and the mentality of the people. “Once I conducted a course on article 6 of the European Convention on Human Rights (ECHR): the right to receive a fair trial. The course lasted a week and we went through lots and lots of technical case-law of the European Court with the assistance of translators. After two days, despite my numerous efforts to involve the course participants by posing questions to the audience, no one had asked me any question in return.” Only when discussing the ‘independent tribunal’ requirement of article 6, the first, hesitating hand was raised to ask: “I feel that the notion of independence of a judge is very interesting. However, I do need to clarify something. Do I understand it correctly? Does it indeed mean that one does not consult with its party bureau first, that is, before ruling a case?” Kuijer:
“Initially, I was just staring at him, seriously wondering whether he was perhaps making a joke? But I quickly realized, by looking at the faces of other participants, that it was a dead honest question. So I told him I believed he had understood the essence: one does not consult with the party bureau in advance of bringing out a verdict. Well, this resulted in a loud buzz. After a long internal discussion amongst the participants, a subsequent question was asked. “How do judges in the West reach their rulings, if they do not consult with their party bureau in advance?”. Then one realizes that after having gone through all the technical jurisprudence in the field of article 6 ECHR for two days, we could start all over. A new course was starting right there”.
Pre-conceived assumptions as the origins of misunderstandings
Those experiences have been a good lesson. Kuijer: “You should never assume that agreement means understanding. Likewise, don’t assume some concepts are universal as they may have a different connotation and meaning in other cultures. And these differences don’t necessarily have much to do with the legal culture in a given country or being in a different stage in fighting corruption or whatever. The entire society may be coming from another point of view.”
Spreading the gospel
Kuijer: “The reason why I engage in these legal capacity building projects is that I – and I assume this is true for almost everyone involved in this field – feel a deeply rooted conviction, that one can guarantee a certain social peace and stability in a country or region by improving the rule of law.” Kuijer says that he and other experts truly believe that it does make a difference if you try to make your counterpart, step-by-step, realize things could also be done differently and that how structures are organized today does not necessarily result in what’s best for society in the long term.
“A friend and I are sometimes jokingly saying we are engaged in spreading the gospel again. Except that our gospel is a human rights story.”
Kuijer adds that it’s extremely enriching to come across all those foreign traditions and cultures even if not directly working on rule of law projects.
Kuijer’s curiosity about other cultures has also helped him to see The Netherlands from another perspective and that’s why he finds these trips abroad very enriching. Kuijer: “Once, for a CILC project in Tanzania, participants were extremely interested in our Dutch General Administrative Law Code. To me, that seemed somewhat peculiar, until I found out that they were convinced that general principles of good governance would be incorporated in our Code. In their view, this would be quite evident: how else could one have a framework within which a government agency is able to operate? If anywhere, it should be codified in this code.” To Kuijer, that was a fantastic eye-opener, demonstrating how people in The Netherlands, despite all their rule of law projects abroad, did not organize many things very well themselves as these good governance principles are indeed to a large extent uncodified.
Kuijer: “It almost seems as if we take things for granted in The Netherlands. It took quite a while before we established a national human rights institute, arguing that this might not be really necessary since we already had so many similar institutions. The same goes for legislating the right to receive a fair trial in our Constitution – only recently did we start working on this – and many people wonder if we really need it as we are already covered by article 6 ECHR.” Kuijer says that when comparing countries, in a lot of instances he feels privileged to be living in The Netherlands.
“These contrasts get me thinking about why some countries fare well despite not regulating fundamental rights while others need explicit legislation to guarantee them.”
Pioneers’ work in Eastern Europe
Kuijer’s first project with CILC took place in 2001-2002. He recalls: “This was a very challenging large project commissioned by the European Commission, involving 10 European Union (EU) candidate countries in Eastern Europe. It was called the Phare Horizontal Programme: ‘Reinforcement of the Rule of Law’. A dozen of experts from different EU member states, such as judges and academic researchers were participating in the project.” The European Commission had to verify if the structures in those candidate countries were in compliance with the EU accession criteria, the so-called Copenhagen criteria (defined at the European Council in Copenhagen in 1993), such as the rule of law. Kuijer:
“This was a truly pioneering work. The first thing that struck us was that maybe we needed to define what was our understanding of what actually constitutes the ‘rule of law’. Everyone knew approximately how to define ‘rule of law’. Or perhaps not? This was an excellent example of the perils of assuming that all experts from different nationalities are talking about the same thing – whereas often this isn’t the case at all.” For example, a German expert expressed a preference for his own country’s ‘Gesetzliche Richter’ doctrine, a fundamental right stipulating that the court and judge for litigation and processes should be appointed in advance. Kuijer: “In his view, a system that did not function accordingly, could not be considered a state based on the rule of law. However, experts from several other countries, including The Netherlands, argued this was not currently the case in many EU member states either. So we really had to define our common grounds first.”
This initial step was followed by a period of study where the experts went back home and read through each of the 10 candidate countries’ legal documentation – this took quite a while and involved translating the different documents from the candidate countries into English. After completion, the experts travelled to the 10 candidate countries to investigate the actual situation in the field, by holding various discussions with different stakeholders, and verifying how their experiences matched the written documents.
Kuijer: “This was very interesting. In those countries, we had access to truly all kinds of dignitaries: ministers of justice received us as did constitutional courts and councils for the administration of the judiciary. Of course there was a lot at stake for those countries. All our steps were studied very carefully.”
The project resulted in an extensive report, which was only a summary of the even more extensive underlying studies of each of the 10 candidate countries. The findings contributed to the political decision that further work was needed in key areas to address shortcomings in judicial reform and in the fight against corruption in two of those ten candidate member states.
Whereas in this case, the Commission took the study findings very seriously and requested a follow-up mechanism to be established, Kuijer also noticed how an interest by donors in a country can be quite temporary. “These candidate countries received plenty of attention by donors while still in the possession of EU candidate status. I conducted several training sessions for judges in Romania and Bulgaria. However, as soon as these countries became EU member states, all funding for this kind of projects was terminated.” This destroyed an incredible amount of investment in restructuring the legal institutions in those countries. Kuijer:
“This taught me the importance of real commitment to follow through and achieve the project’s aim in a country – something we did not do here – as opposed to organising a project here and there on a purely ad-hoc basis.”
Nevertheless, a few years ago, Kuijer was contacted by a former participant of one of the courses he had conducted in Romania – today head of the training institute for the judiciary – to engage again in a knowledge exchange programme. Kuijer: “It’s at these moments one realises the importance of establishing and maintaining personal contacts and friendships.”
Opportunities: sharing knowledge on project countries
In Kuijer’s view, maintaining a good level of practical know how concerning a project country is of growing importance. For him, it’s crucial to improve the documentation of different legal capacity building projects in a country, register the different partners with whom cooperation has been effective (or not) and issues that tend to create problems in the cooperation – not only within CILC but also between other organisations engaged in rule of law capacity building. Kuijer: “There’s a world to be won there.” For instance, sometimes it’s best to become involved in a country through an agent of the European Court for Human Rights and arrange the cooperation through this channel, while on other occasions a training institute for the judiciary or a national human rights institute is better suited. Kuijer: “Unfortunately, this sort of field/practical knowledge is often lost because there isn’t a repository of such information. And so one ends up discovering what the best practices are by re-inventing the wheel over and over again.”
Kuijer strongly advocates more cooperation in this field between universities, institutes and committees engaged in rule of law capacity building.
“Through this, we could also, on a more abstract level, better decide where our priorities should be and set a central strategy – which will increase the impact of a project. As a consequence, we would be able to show commitment to a country and prevent a return to ad-hoc type of projects.”
Government as best friend in achieving reforms
Further, according to Kuijer, it could be beneficial to avoid seeing the project country’s government as an enemy. “Our classical approach is that a project has the largest chance of success if it is perceived as politically neutral – as technical. Many projects are aimed at the civil society and the judiciary. However, I wonder whether this is always the best way to proceed.” Sometimes, a Rule of Law related problem is the result of legislation which may only be solved by involving the relevant ministry. Or, the roots of a problem that a project aims to address lie within the execution services of a government, such as an immigration service, the police or the penitentiary institutions. “That’s where investments should be made, to anchor changes institutionally.”
According to Kuijer, only by including the ministries in your project can one achieve this: they are the ones with the power to decide on a potential change in their policies. Kuijer: “There seems to exist a natural inclination to deal only with the judiciary, civil society, national human rights institutes, Ombudsmen, academics. Often, the government is only perceived as a sort of ‘anti-Christ’ or ‘axis of evil’. There’s a world to be won if we could also include the government in our approach and perceive it as our biggest potential friend in achieving reforms. We need them desperately.”
Something else crucial to Kuijer is that a project approach should be very down-to-earth. “For example, a project that doesn’t include funding in its budget to translate its main training documents into the language of the receiving country is doomed to fail. There is no point in having course participants listening to an expert for days. They will not use any of the knowledge acquired unless they have access to documentation.” Kuijer further underlines the importance of not assuming a paternalistic stance.
“It’s very important that the receiving party does not feel that you come to show them how things ‘should be done’ or to benchmark their progress in certain fields. It should be very clear what’s in it for the receiving country upon starting a project.”
Turkey, Tanzania, FYR Macedonia
Kuijer has participated in other projects with CILC such as a train-the-trainers project in Turkey in 2010 to prepare Turkish judges (seconded at the Turkish Justice Ministry, EU Accession Department) and a seminar in FYR Macedonia in 2011 (Matra Programme) in which 40 judges, prosecutors, lawyers and civil servants participated. Furthermore, he conducted a training for the Commission for Human Rights and Good Governance (CHRAGG) on international human rights standards in what is considered the “legal capital” of Africa, Arusha, Tanzania in 2013.
During his visit to Tanzania, Kuijer recognized that both The Netherlands and Tanzania often face similar challenges, such as a high percentage of suspects kept in pre-trial incarceration. He was inspired by the passion of the participants for their human rights activities and their full engagement during the course. Kuijer jokingly: “Although I was slightly disappointed when none of these human rights officers intervened when our bus was stopped by a traffic police officer requesting a bribe to let us pass”.
Kuijer also often represents CILC by serving as a host to foreign delegations on a visit to the Netherlands and he also conducts lectures: for the MATRA South programme, the CoPROL Leadership Programme for Security and Rule of Law for Albanian civil servants, and for Russian students.
To conclude, Kuijer muses on the potential future of rule of law projects. “What I hope, is that other parts of the world have noticed how Eastern Europe, after the collapse of the Berlin Wall in 1989 and in a relatively short period of time, experienced enormous changes: often for the better. When you compare some countries to where they were ten years ago, with regard to fields such as general observance of human rights, fighting corruption, the functioning of the judiciary or the training of judges – it’s indeed a world of difference.” Kuijer hopes that other countries will realize the big step forward those countries have taken. “Guaranteeing a basic package of rule of law leads to improved internal and social stability. This stability in turn creates a favourable investment climate and more room for economic exchange: there is now trust to engage in challenges. And apart from the economic benefits, a strong rule of law creates stronger international security in a region.”
In that sense, Kuijer hopes the existing assistance in the field of rule of law will continue or even expand further. “There is a growing trend now in which countries in Africa and Asia have been requesting assistance in this field.” Similarly, Kuijer noticed that the work of the Venice Commission of the Council of Europe has been receiving a lot of attention in other parts of the world. Its role is to provide legal advice to its member states and, in particular, to help states wishing to bring their legal and institutional structures into line with European standards and international experience in the fields of democracy, human rights and the rule of law.
Kuijer: “I believe that if leaders would think rationally, they would invest in the rule of law. If they are sensible, they would make rule of law a ‘booming business’.”